Mathias v Toka Tū Ake - Natural Hazards Commission
[2025] NZHC 2325
•15 August 2025
IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY
I TE KŌTI MATUA O AOTEAROA ŌTAUTAHI ROHE
CIV-2021-009-2441
[2025] NZHC 2325
BETWEEN CAROL ANN MATHIAS
Plaintiff
AND
TOKA TŪ AKE – NATURAL HAZARDS COMMISSION
Defendant
Hearing: On the papers Appearances:
G D R Shand for Plaintiff
C J Curran and N L Walker for Defendant
Judgment:
15 August 2025
JUDGMENT OF ASSOCIATE JUDGE PAULSEN (APPLICATIONS FOR LEAVE TO APPEAL AND STAY)
This judgment was delivered by me on 15 August 2025 at 4.00 pm pursuant to Rule 11.5 of the High Court Rules.
Registrar/Deputy Registrar Date:
MATHIAS v TOKA TŪ AKE – NATURAL HAZARDS COMMISSION [2025] NZHC 2325 [15 August 2025]
[1] Ms Mathias has been granted leave to bring her claim against Toka Tū Ake – Natural Hazards Commission (NHC) as a representative proceeding under r 4.24 of the High Court Rules 2016. She is in receipt of litigation funding to do so from Canterbury Litigation Funding Ltd.
[2] In a judgment of 15 May 2025, I determined a number of issues that had arisen between the parties prior to the case being set down for trial.1 Those issues concerned:
(a)allocation of dates for the trial;
(b)an application by NHC to re-categorise the proceeding as category 3 for costs purposes;
(c)an application by NHC for security for costs;
(d)an application by NHC that Ms Mathias provide further discovery; and
(e)the making of pre-trial directions.
[3]In my judgment, I ordered that:2
(a)the case was to be set down for trial for 34 days commencing 12 April 2027;
(b)the proceeding was to be re-categorised for costs purposes as category 3;
(c)Ms Mathias was to provide security for costs on a staged basis;
(d)Ms Mathias was to file a further affidavit of discovery; and
(e)counsel were to confer over pre-trial directions and submit a joint memorandum.
1 Mathias v Toka Tū Ake [2025] NZHC 1170.
2 Mathias v Toka Tū Ake, above n 1, at [86]–[89].
[4] Subsequently I issued a judgment in respect to the costs of that application along with a full suite of pre-trial directions.3
[5] Ms Mathias has applied for leave to appeal the judgment of 15 May 2025 (the judgment) in respect to the:4
(a)allocation of 34 days for trial;
(b)re-categorisation of the proceeding for cost purposes; and
(c)the requirement that she provide security for costs.
[6] In addition, Ms Mathias has applied for a stay of the order requiring payment of security for costs pending determination of the application for leave to appeal. I understand that Ms Mathias has not complied with any of the orders made in my judgments, including in relation to the provision of security for costs and that she file a further affidavit of discovery.
[7]NHC opposes the applications for leave to appeal and stay.
The leave to appeal application
Legal principles
[8]Ms Mathias requires leave to appeal from the judgment. Sections 56(3) and
(4) of the Senior Courts Act 2016 provide:
56 Jurisdiction
...
(3)No appeal, except an appeal under subsection (4), lies from any order or decision of the High Court made on an interlocutory application in respect of any civil proceeding unless leave to appeal to the Court of Appeal is given by the High Court on application made within 20 working days after the date of that order or decision or within any further time that the High Court may allow.
3 Mathias v Toka Tū Ake [2025] NZHC 1887.
4 Mathias v Toka Tū Ake, above n 1.
(4)Any party to any proceedings may appeal without leave to the Court of Appeal against any order or decision of the High Court—
(a)striking out or dismissing the whole or part of a proceeding, claim, or defence; or
(b)granting summary judgment.
...
[9] The principles that apply to an application for leave to appeal under s 56(3) are set out by the Court of Appeal in Greendrake v District Court of New Zealand.5 There, the Court of Appeal stated:
[6] In Finewood Upholstery Ltd v Vaughan, to which Dunningham J referred to in the leave decision, Fitzgerald J appropriately observed that the requirement for leave to appeal should serve as a filtering mechanism to ensure that unmeritorious appeals of interlocutory orders, or appeals of interlocutory orders of no great significance to either the parties or more generally, do not unnecessarily delay the proceedings in which the orders were made. The following considerations were recognised as relevant on an application for leave to appeal:
(a)a high threshold exists;
(b)the applicant must identify an arguable error of law or fact;
(c)the alleged error should be of general or public importance warranting determination or otherwise of sufficient importance to the applicant to outweigh the lack of general or precedential value;
(d)the circumstances must warrant incurring further delay; and
(e)the ultimate question is whether the interests of justice are served by granting leave.
[7] This Court in Ngai Te Hapu Inc v Bay of Plenty Regional Council indicated that considerations similar to the principles applicable to applications under the former s 24G of the Judicature Act 1908, as explained in Meates v Taylor [Leave], apply to applications under s 56(5) stating:
We agree that leave to appeal should only be granted where the significance or implications of an arguable error of fact or law, either for the particular case or for the applicant or as a matter of precedent, warrants the further delay which the appeal process would involve.
[10] Counsel for NHC also submits, and I accept, that two further principles apply in a case such as this.
5 Greendrake v District Court of New Zealand [2020] NZCA 122 (footnotes omitted).
[11] First, appellate courts will exercise restraint in respect of, and are reluctant to interfere with, matters of case management which are administrative in character and do not affect the parties’ substantive rights.
[12] In Regan v Gill the Court of Appeal considered an appeal from a decision of the High Court managing two proceedings and declining an application to consolidate them.6 The appeal was brought on the basis that consolidation would lead to a considerable saving in time. The Court of Appeal dismissed the appeal, noting:
[15] Thirdly, while s 66, on the Supreme Court’s interpretation, permits an appeal in cases of this kind, this Court would always be very slow to overturn a decision which does not affect the parties’ substantive rights at all. The High Court decision was entirely procedural — almost administrative.
[13] Second, when challenging the exercise of a discretion an appellant must meet a high threshold by demonstrating an error of law, that an irrelevant consideration has been taken into account, or a relevant consideration overlooked, or that the decision is plainly wrong.
[14] In Jindal v Liquidation Management Ltd there was an application for leave to appeal the fixing of security for costs.7 The Court of Appeal noted:
[29] We repeat — in the circumstances of this case, in fixing security for costs, the Judge was exercising a discretion. It is not obvious that the Judge erred in principle, failed to take into account any relevant matter, or took into account any irrelevant matter. It is also not obvious that the Judge was clearly wrong in his decision. The security for costs judgment does not involve any interest of sufficient importance to outweigh the costs and delay of an appeal. It involves no issues of general or precedential importance. In our view, any appeal against the Judge’s security for costs judgment cannot succeed. Accordingly, we decline to grant Mr Jindal leave to appeal the security for costs judgment.
Duration and allocation of trial dates
[15] As I noted in my judgment, the parties had very different views as to the length of the trial which had implications for available trial dates.8
6 Regan v Gill [2011] NZCA 607.
7 Jindal v Liquidation Management Ltd [2023] NZCA 413 (footnotes omitted).
8 Mathias v Toka Tū Ake, above n 1, at [6] and [13].
[16]In respect to the assessment of the competing positions, I noted as follows:
[17] The allocation of trial dates requires the exercise of judgement, based on an understanding of the nature of the case, the information provided by the parties as to the matters in issue and number, type and characteristics of the witnesses, counsel’s estimates of the trial length and, to a large extent, experience.
[18] The ability to allocate trial dates is, of course, also subject to available judicial and court resources. In this instance, Ms Mathias’s belief that an earlier hearing will be available for a shorter trial is correct only to an extent. An earlier date would be available if the trial was set down for less than 15 days but I do not believe there is any prospect the trial could be completed within that timeframe. I also consider the Court should be wary of the risks of a late adjournment or the case being adjourned part-heard if there is insufficient hearing time.
[17] Ms Mathias’s complaint is that my assessment that the trial would take 34 days was wrong as this is a simple, single house building defect case that will take only five days to hear. It is argued that I had not considered, and there was no mention in my judgment of, a case referred to as the “Gibling case” said to raise similar issues where trial duration had been estimated at 15 days. In fact, the Gibling case and other cases relied upon by Ms Mathias were considered in the judgment.9
[18] It is said I should have accepted the evidence of “experienced lawyers” who had been involved in other proceedings against NHC as to the likely trial duration, and I had incorrectly considered that their evidence was not given in accordance with the Code of Conduct for Expert Witnesses when it was fact evidence.10
[19] As I said in my judgment, the evidence of the lawyers was indeed unhelpful in circumstances where they were not involved in this case, their opinions were based on assumptions that did not reflect the reality of this litigation, and their estimates of the likely length of the trial were plainly incorrect.11 They also failed to comply with the Code of Conduct for Expert Witnesses.12 As NHC submits, to the extent that Mr Shand is correct those witnesses gave fact evidence, their evidence did nothing but establish that trials of quite different non-representative proceedings involving few witnesses
9 At [21].
10 Evidence Act 2006, ss 25 and 26; and High Court Rules 2016, Sch 4.
11 Mathias v Toka Tū Ake, above n 1, at [21]–[22].
12 At [22].
had been allocated shorter trial lengths which is largely, if not entirely, irrelevant in circumstances where none of those cases went to trial.
[20] It is then said that to the extent I correlated trial duration with the importance of the decision I was incorrect. Mr Shand’s submission in this respect appears to be that there have been prior decisions of the New Zealand courts of some importance which have been heard over periods of just three to five days. There is no doubt that is the case, but it is not seriously arguable that this is such a case.
[21] Mr Shand argues there was no evidence to support NHC’s witness estimate and I made no enquiry of NHC as to the need for the witnesses. That is not correct. As I noted in the judgment:13
[23] NHC’s counsel provided data as to the length of other stage I trials in representative proceedings which typically take longer than 35 days. Of course the issues that arose in those cases were different from this one, but it appears representative proceedings generally result in lengthy hearings, and I believe this case will be no exception.
[24] NHC’s estimate of the duration of the trial has been carefully prepared with a detailed understanding of the issues that arise and the case it intends to bring at trial. There is room to question some aspects, such as the two days for evidence from class members (who may not be called) and five days for closing submissions (which I think is excessive), but on the other hand there is no provision for response evidence from Ms Mathias nor any room for unexpected events and slippage during the course of what will be a long trial.
[25] I am satisfied NHC’s estimate is reasonable and this case should be set down for trial commencing 12 April 2027 with 34 days reserved.
[22] As will be clear, I did not accept NHC’s estimate at face value and assessed the 34 days as appropriate, taking into account the risk that if the trial was set down for fewer days it could be adjourned part heard.14
[23] Mr Shand submits that I do not appear to understand how this representative proceeding works and that this is not a class action process. In my judgment I did not refer to this proceeding as a class action but as a representative proceeding.
13 (footnotes omitted).
14 At [18].
[24] Mr Shand has not raised anything that suggests the decision to set the case down for 34 days was wrong. In any event, the allocation of trial dates is a matter of case management and not something the Court of Appeal should be expected to consider.
[25] Finally, Ms Mathias’s concern is said to be about the delay associated with a trial in April 2027. Even if some error in my approach was established, granting her leave to appeal would be prejudicial to her. The prospect of obtaining an earlier hearing is remote, but if an earlier date was given on the basis of a shorter trial duration Ms Mathias would be at risk of a part-heard trial, followed by a substantial delay before it could be completed.15
Re-categorisation of the proceeding
[26] It is argued that I was wrong to re-categorise the proceeding for costs purposes because there had been no change in circumstances justifying that course. After the hearing Mr Shand referred me to a recent decision of the Court of Appeal in Grimshaw v Body Corporate 207624, which he says supports Ms Mathias’s position.16
[27] Grimshaw is quite different from this case. There the parties had agreed that the proceeding was category 2, it was re-categorised after trial, and no special reasons to re-categorise existed.17 None of that applies here.
[28] The special circumstance that justified the re-categorisation of this case was that the Associate Judge who originally categorised the proceeding plainly did not appreciate the substantive effect the representative nature of the proceeding would have on the future conduct of the trial. While Mr Shand says there is no evidence of that, it is self-evident from the Associate Judge’s minute.18
15 At [18].
16 Grimshaw v Body Corporate 207624 [2025] NZCA 392.
17 At [175]–[176], above n 3.
18 Mathias v Toka Tū Ake, above n 1, at [27], [28] and [42].
[29] There is also no prejudice to Ms Mathias in re-categorisation of this proceeding. As I noted in my costs judgment, the re-categorisation does not apply to prior steps in the proceeding19 and she is in receipt of litigation funding.
[30] The decision to re-catagorise the proceeding was the exercise of a discretion and does not raise any issue of importance or have any precedential effect to justify the time and delay of an appeal.
Security for costs
[31] It appears the primary challenge to my judgment is that security for costs could only be determined under r 5.54 of the High Court Rules and not in the inherent jurisdiction of the Court.
[32] I accept the submission for NHC that a proposed appeal on this basis has little prospect of success. There is High Court and Court of Appeal authority as to the approach to be taken to the granting of security for costs in funded representative proceedings in the exercise of the High Court’s inherent jurisdiction. Those authorities are referred to and applied in my judgment.20 The contention that security for costs could only be awarded under r 5.45 is therefore not arguable. The appeal does not raise any important issue in relation to the awarding of security for costs in representative funded proceedings which has not already been determined by the Court of Appeal.
[33] Further, as Ms Mathias has litigation funding it is in her interests that the funder provide security for costs on a generous basis. It is a concern that the funder has no proven track record in litigation funding and has provided no evidence of its ability to meet any award of costs. That is particularly so in circumstances where, should the funder not be able to pay costs and Ms Mathias’s claim fails, she will face a significant costs liability that she will not expect. As NHC submits, it is of benefit to Ms Mathias vis-à-vis the funder that a full award of security for costs is granted due to its protective effects.
19 Mathias v Toka Tū Ake [2025] NZHC 1887 at [6].
20 At [48]–[49].
[34] Mr Shand makes other submissions which are not tenable. He argues the Court should infer Ms Mathias has a strong case due to the existence of the Crown on-sold scheme which is “as good as” an admission of liability. It is not. It is said that granting security for costs “would impede access to justice”. There is no explanation for this. It is then said that NHC is not in need of the protection of an award of security for costs but here there are legitimate concerns about this funder’s ability to pay costs.
Conclusion
[35] The proposed appeal has, in my view, limited chances of success and raises no issues of importance. In the main it concerns case management decisions in the exercise of discretion which are not usually amenable to appeal.
[36] Mr Shand surprisingly argues in his written submissions that leave to appeal should be granted because “[a] Court of Appeal decision on security in class actions(s) will be of benefit to many”, in contradiction to his earlier submission that I did not appear to understand that this is not a class action.
[37] Even if I am wrong and Ms Mathias was successful on appeal, it would result in significant delay and put the existing timetable in jeopardy. Further, Ms Mathias will personally obtain no benefit from an appeal regardless of the result. It is not in the interests of justice to grant leave to appeal.
The stay application
[38] As I do not intend to grant leave to appeal, no issue in relation to a stay arises. Even if I had granted leave to appeal, I do not consider it would have been appropriate to grant a stay in the circumstances of this case.
[39] As NHC correctly points out, the failure to grant a stay would not render the appeal nugatory and nor has any prejudice been shown that Ms Mathias needs to be protected against in the event of a stay not being granted. The granting of a stay would also be unfair to NHC because it would be effectively forcing it to conduct significant preparation for the trial, including preparation of a great deal of evidence, without the protection of an order for security for costs.
Result
[40]The application for leave to appeal is dismissed.
[41]The application for stay is dismissed.
[42]NHC is entitled to costs on a 3B basis plus reasonable disbursements.
O G Paulsen Associate Judge
Solicitors:
Grant Shand, Auckland Russell McVeagh, Wellington
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